Litmon v. Babcock

Filing 59

ORDER by Judge Ronald M. Whyte Granting 57 Motion for Extension of Time; Denying 58 Motion for Certificate of Appealability. (jg, COURT STAFF) (Filed on 10/27/2008)

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Order Denying Certificate of Appealability G:\PRO-SE\SJ.Rmw\HC.00\Litmon996.COA.md.wpd

*E-FILED - 10/27/08*

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION DAVID LITMON, JR., Petitioner, vs. EDWARD FLORES, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 03-03996 RMW (PR) ORDER DENYING CERTIFICATE OF APPEALABILTY

(Docket Nos. 57, 58)

Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was denied on its merits. Petitioner has filed a motion for a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473 (2000). Except for substituting the word "constitutional" for the word "federal," section 2253(c)(2) codified the standard announced by the Supreme Court in Barefoot v. Estelle, 463

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U.S. 880, 892-93 (1983). Slack, 529 U.S. at 475. In Barefoot, the court explained that "a substantial showing of the denial of [a] federal right" means that a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner], or that the questions are adequate to deserve encouragement to proceed further." Barefoot, 463 U.S. at 893 n.4 (citations and internal quotations omitted). Any doubts about whether the Barefoot standard has been met must be resolved in petitioner's favor. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000). The court denied the instant petition after careful consideration of the merits. The court found no violation of petitioner's federal constitutional rights in the underlying state court proceedings. Petitioner has failed to demonstrate that jurists of reason would find it debatable whether this court was correct in its ruling. Accordingly, the court will DENY petitioner's request for a certificate of appealability. The clerk shall serve notice of this order forthwith to the United States Court of Appeal and to the parties. See Fed. R. App. P. 24(a). Petitioner's motion for an extension of time to file an application for a certificate of appealability is GRANTED. Petitioner's application for a certificate of appealability is timely filed. This order terminates docket numbers 57 and 58. IT IS SO ORDERED. DATED: 10/22/08 RONALD M. WHYTE United States District Judge

Order Denying Certificate of Appealability G:\PRO-SE\SJ.Rmw\HC.00\Litmon996.COA.md.wpd

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